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What does the law have to say about foreign wills? – II

In our last post, we discussed how wills executed in foreign countries are generally admissible in U.S. courts provided they adhere to the most basic requirements, do not make significant changes to an existing will and/or are not too unconventional.  

We also started discussing how the issue of assessing the validity of a foreign will was recently before the Florida courts in a case involving a woman who executed a valid will in the state of New York and executed another will after moving to Argentina that revoked this earlier will.

To recap, Argentina’s legal standards permit wills to be transcribed by a notary in the presence of witnesses who supply vital information (names, addresses, government-identification numbers, etc.) and, more significantly, for testators to simply provide oral approval of the will after having it read back to them. 

In the case in question, the Argentine woman ultimately passed away while living in Florida, such that the courts here were called upon to decide the legal dispute between her heirs as to which will — the one executed in New York or Argentina — was the controlling instrument.

While a Miami circuit court judge initially ruled the Argentine will was both valid and precedential, this decision was later overturned by an appellate court toward the end of September.

Here, the court held that that Florida law bans “nuncupative” or oral wills so as to prevent so-called deathbed wills, and that even though the Argentine will was not executed under these circumstances, it nevertheless fell within the parameters of what one could conceive as being a nuncupative will.

The court also discussed that while Florida law does permit notarial wills, it nevertheless fails to provide an exact definition of what conditions must be satisfied in order for a notarial will to be considered valid under state law.

As such, the court referenced secondary sources, which indicated that notarial wills must be signed by the notary, witnesses and the testator. Given that two of these three signatures were missing from the Argentine will, the court ruled that it was not a valid notarial will.

Finally, in holding that the New York will was the controlling document, the appellate court asked the state legislature to furnish definitions of both nuncupative wills and notarial wills in order to provide guidance to attorneys and judges going forward.    

What all of this serves to underscore is that foreign wills are a complex area of the law and that those with any questions should strongly consider sitting down with an experienced legal professional.



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